Opinion
No. 29385.
March 9, 1931.
1. TAXATION. State tax collector's requisition against commission fund is sufficient if showing in intelligible manner authorized expenditure within governing statutory provisions ( Code 1930, sections 6511, 6999).
Therefore state tax collector's requisition against commission fund presented to state auditor need not contain detailed statement or annexed exhibit showing particulars in which proceeds of requisition are to be expended.
2. TAXATION.
State tax collector's requisition against commission fund presented to state auditor need not be in any particular technical form (Code 1930, sections 6511, 6999).
3. TAXATION. Requisition of state tax collector against commission fund presented to state auditor held to sufficiently show authorized expenditures ( Code 1930, sections 6511, 6999).
Requisition of state tax collector presented to state auditor showed that collector was creditor in certain amount on account of fees for services performed, commissions earned, collected, and then deposited in state treasury to credit of state tax collector as authorized by Code 1930, sections 6999, 7180, 7182.
4. TAXATION.
State auditor is not vested with authority to pass on necessity of requisition of state tax collector against commission fund.
5. MANDAMUS.
State tax collector held entitled to prosecute petition for mandamus to compel state auditor to honor requisition against commission fund.
APPEAL from circuit court of Hinds county, First district. HON.W.H. POTTER, Judge.
J.A. Lauderdale, Assistant Attorney-General, for appellant.
In the state of Mississippi, mandamus is a statutory remedy, and only those authorized by law are empowered to pray for a writ of mandamus to issue. Under the provisions of this statute, only the attorney-general, the district attorney, or a private person is entitled under any circumstances to a writ of mandamus. It is clear from the allegations in this petition that this suit is brought by the state tax collector in his official capacity as such, and that it is brought in the name of the state of Mississippi.
Section 2348, Code of 1930; Henry v. State, 87 Miss. 1; Capitol Stages v. State ex rel. Hewitt, District Attorney, 128 So. 759.
It is not alleged in the petition and it does not appear thereon by necessary implication that the matter is one affecting the public interest, and, therefore, mandamus is an improper remedy.
Sunflower Co. v. State, 134 Miss. 180, 98 So. 593.
The general provisions of the Code of 1930 in reference to the duties of the state auditor in issuing warrants are shown by the following sections:
Sections 3729-3733-5753.
The law in reference to the twenty per cent commission allowed the state tax collector is shown by the following sections, 7180, 7182, 6511, 6999, Code of 1930.
Appellant contends that under the law it is the duty of the state auditor, to audit, pass upon, and allow all such requisitions. In other words, that the law requires the state auditor, to exercise his judgment and discretion in passing on such requisitions.
Miller v. White, 157 Miss. 114, 126 So. 833.
The state tax collector is entitled to a salary and he is not entitled to commissions or compensations for services performed.
Miller v. White, 157 Miss. 114, 126 So. 833.
This suit is to require the state auditor to issue appellee a warrant for "services performed and commissions earned" in order that he may disburse it "as he may deem proper under the circumstances." It clearly appears that the payment of this warrant to the state tax collector would be a payment not authorized by law, and he is not entitled thereto.
Section 6511 (21), Code 1930.
The statute makes this twenty per cent collected and paid over by the state tax collector a trust fund to be used and expended by him for the purposes named and fixed by law. He is not authorized to draw it out on his own account. Neither is he authorized to draw it out for any other purpose.
Sections 7180-6511 (21), Code of 1930.
J.H. Sumrall, of Jackson, for appellee.
The withdrawal and disposition of this fund remained the responsibility of the state tax collector, as it had been before. It is mandatory on the state auditor to honor his requisitions against such fund to the full amount thereof, if necessary, the state auditor has no discretion in the matter.
Miller v. White, 157 Miss. 114, 126 So. 833.
State tax collector was authorized by law to ask for a writ of mandamus in the name of the state of Mississippi, or in any other manner.
Miller v. White, 157 Miss. 114, 126 So. 833; Morris v. Riley, Auditor, 135 Miss. 1; Section 2348 of Code of 1930.
The state tax collector was vested with full authority to be exercised in good faith, to pass on and allow out of the twenty per cent commissions his own salary, the salaries of his deputies and expenses of his office. It was not intended to authorize the state auditor to act in a quasi-judicial capacity in passing on appellant's requisitions against this twenty per cent commission fund, to pay the salaries and expenses of his office. Such requisitions by the state tax collector relieve the auditor of all responsibility, being his vouchers for issuance of warrants on the state treasury for the amounts therein called for.
Miller v. White, 157 Miss. 114, 126 So. 833.
On January 3, 1931, appellee, state tax collector, presented to the appellant, state auditor, a requisition in the following words and figures:
"Office of the State Collector "State of Mississippi "Jackson
"The State of Mississippi
"To ____ W.J. Miller ____ Dr. $416.65 ____ Four Hundred Sixteen and 65/100 ____ Dollars on account of ____ State Tax Collector's Fees ____ for services performed, commissions earned, collected and now deposited in State Treasury to credit of State Tax Collector. Authorized by sections 6999, 7180, 7182, Code of 1930, and 126 So. 833.
"Receipt of Auditor's warrant for the above amount in full payment of the above claim is hereby acknowledged.
"This the 3rd day of January, 1931.
"W.J. MILLER.
"Approved "S.M. THOMAS "Bookkeeper "W.J. MILLER "State Tax Collector"
The auditor refused to honor the requisition, whereupon appellee prosecuted a petition for a writ of mandamus, which being sustained by the court, the auditor appeals.
It seems to us that nothing new is raised in this case on the merits, as against the full discussion by the court in Miller v. White, 157 Miss. 114, 126 So. 833. It was said therein, page 123 of 157 Miss. 126 So. 833, 835: "It was not intended to authorize the state auditor to act in a quasi judicial capacity in passing on appellant's [the state tax collector's] requisitions against this twenty per cent. commission fund to pay the expenses and salaries of his office. The withdrawal and disposition of this fund remained the responsibility of the state tax collector, as it had been theretofore. It is therefore mandatory on the state auditor to honor his requisitions against such fund to the full amount thereof, if necessary, the state auditor has no discretion in the matter. Such requisitions by the state tax collector relieve the auditor of all responsibility, being his vouchers for the issuance of warrants on the state treasurer for the amounts therein called for."
We do not know how to make the language above quoted any clearer than as there stated, except perhaps to add that the auditor is not required to have as a part of the requisitions from the state tax collector any detailed statement or annexed exhibit as to the particulars of the manner in which the proceeds of the requisition upon the twenty per cent. fund are to be expended, if only the requisition shall show in an intelligible manner that the expenditure is within sections 6511 and 6999, Code 1930. The requisition is not required to be in any particular technical form; it will be enough that without technical language, the purposes of its use within the said statutes are disclosed. We think the requisition in this case is sufficient, and is not substantially subject to the technical criticism made against it. Nor is the auditor required or allowed to pass on the necessity of the requisition. If the state tax collector, in his requisitions on the twenty per cent. fund, exceeds the necessities of the payment of the salaries of his office, the compensation to his deputies, attorneys' fees, and the various other authorized expenses of his office, that will be the responsibility of the state tax collector under his bond, and otherwise under the penalties of the law.
The only new point in this case is the contention that the state tax collector is not authorized to prosecute a petition for mandamus. The rule seems to be well settled that "public officers or boards may bring mandamus to compel the performance of official duties . . . which is necessary to enable them to perform their own duties." 38 C.J., p. 836; 13 Encyc. Pl. Pr., p. 627.
Affirmed.